Clause 28
Pensions Bill
4:00 pm
Mike O'Brien (Minister of State (Pension Reform), Department for Work and Pensions; North Warwickshire, Labour)
That is a question I asked too; it seems reasonable for those various parts of a compliance notice to be included. The answer I got was, “Yes, but what happens if the Pensions Regulator already knows that information? Why would one want the compliance notice to contain a request for information that was already in the hands of the Pensions Regulator?” So that is the answer.
There is merit in having a clear, standard form; we do not want lots of variations in forms and so I will consider the amendments. I am more in sympathy with amendment No. 143 than with No. 144 because it may be clear in clause 28(4) what steps the regulator thinks appropriate, perhaps just compliance in terms of making repayments. It is a reasonable assumption that we will want to have a standard form. The best approach is probably that we would want all the points in almost all notices, but that a minor element of discretion might be better—with “may”—in order to not have notices being more complicated for employers than they need to be. If, for example, we had a standard notice and there were various options as to what an employer might be required to do; we could end up with a complicated notice if it had to make a whole list of requests. Particularly if the employer is a small business person and has not had to deal with the Pensions Regulator before, he could get a long list that it looks like he has to comply with, but actually he has done some of those things. He may not have the best of records, he may not know that he has done some of those things, so he may be put to more inconvenience than he needs to be.
There is some benefit in a bit of discretion here—using “may” rather than “must”—but I do not feel strongly. I can see an argument for inserting “must”. It depends on how far the Opposition wish to push this. I am fairly relaxed, but if the hon. Gentleman thinks “must” is necessary, I will reflect on that. However, for the reasons described—to help small businesses—it is probably better to give a level of discretion and not to be too prescriptive. We will consult. I think that most notices will contain all the information, but in practice having an element of discretion, which we can deal with by regulation for particular forms, may well be beneficial.
The only additional argument in favour of “may” rather than “must” is that “may”, because it gives discretion, means that a legal challenge against the precise wording of the compliance notice might be more difficult. If the statute says that a notice “must” say all those things, including
“requiring the employer to inform the Regulator, within a specified period, how the employer has complied or is complying with the notice”,
then an employer may be able to challenge on a legal basis, because “must” is in there and, therefore, things must be done in a certain way. The courts would probably end up having to interpret what that “must” is all about. Having “may” will give some discretion to the Pensions Regulator to have a form that is fairly standard, but if the regulator made a small error in wording or was not as fulsome as a difficult employer might want, then a legal challenge would be more difficult.
For those reasons and on balance, we are probably better off with “may”, but I do not feel that strongly about it. I can see from the hon. Gentleman’s face that he does not feel particularly strongly either. Let us leave it the way that it is.